Judge Explains KinderGuides Copyright Case Decision

By Andrew Albanese
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Sep 12, 2017

Judge Jed Rakoff last week finally issued a written legal opinion in a closely-watched copyright case involving unauthorized “children’s guides” to four classic works, needing just 12 pages to dispatch with defendant Moppet Books' claims that their works were protected by fair use.

“The central question presented in this case,” Rakoff concluded in his September 7 opinion, is whether Moppet's “illustrated children’s guides to adult novels are the sort of use that Congress reserved to the copyright holders, or the sort of use, like criticism or parody, which Congress intended to allow others to exploit.”

Noting the “undisputed” existence of an “established market for children’s books based on adult novels,” and the common practice for copyright holders “to publish (or license)” children’s editions of works that “were originally intended for adults,” Rakoff found that copyright holders have a strong claim to control what he held to be derivative works.

First filed on January 19, the suit was brought by Penguin Random House and Simon & Schuster along with the estates of Truman Capote, Jack Kerouac, Arthur C. Clarke, and Ernest Hemingway. It alleged that upstart Moppet Books’ KinderGuide editions of classic novels—including Capote’s Breakfast at Tiffany’s, Kerouac’s On the Road, Clarke’s 2001, A Space Odyssey and Hemingway’s The Old Man and the Sea—were “unauthorized derivatives” cast as “study guides intended for the elementary school set.”

Rakoff found that copyright holders have a strong claim to control what he held to be derivative works.

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In his opinion, Rakoff rejected Moppet’s contention that presenting the classic works in kid-friendly versions was transformative, and in an odd (and rather ill-fitting) comparison, argued that “the mere removal of adult themes does not meaningfully recast the work any more than an airline’s editing of R-rated films so that they can be shown to children on a flight absolves the airline from paying a royalty.”

The KinderGuide editions include original drawings, short biographies of the authors, very brief and child-friendly re-tellings of some of the novels' key plot elements—about 1,000 words total—with no direct quotes from the text, as well as character summaries and quizzes.

Rakoff, however, took a cynical view of KinderGuides' efforts, accusing the publisher of not recounting the novels “in the service of literary analysis,” but offering “literary analysis in the service of trying to make the Guides qualify for the fair use exception,” he wrote. “Fair use, however, is not a jacket to be worn over an otherwise infringing outfit. One cannot add a bit of commentary to convert an unauthorized derivative work into a protectable publication.”

In a joint statement, Penguin Random House and Simon & Schuster said the opinion is "a clear and definitive victory not only for the plaintiffs in this case, but for copyright holders everywhere."

A trial is scheduled for October 2 to determine whether or not Moppet Books is liable for "willful infringement," which could rachet up any damage award. Moppet Books cofounder Fredrick Colting told PW that he would like to appeal, though he acknowledged the startup may not have the funds available to do so.

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